113 STAT. 200 PUBLIC LAW 106-37 -^JULY 20, 1999 (6) consequential damages (as defined in the Uniform Commercial Code or anedogous State commercial law), (c) CERTAIN OTHER ACTIONS.— ^A person liable for damages, whether by settlement or judgment, in a civil action to which this Act does not apply because of section 4(c) whose liability, in whole or in part, is the result of a Y2K failure may, notwithstanding any other provision of this Act, pursue any remedy otherwise available under Federal or State law against the person responsible for that Y2K failure to the extent of recovering the amoiuit of those damages. 15 USC 6612. SEC. 13. STATE OF MIND; BYSTANDER LIABILITY; CONTROL. (a) DEFENDANT'S STATE OF MIND. —In a Y2K action other than a claim for breach or repudiation of contract, and in which the defendant's actual or constructive awareness of am actuEd or potential Y2K failure is an element of the claim, the defendsuit is not liable unless the plaintiff establishes that element of the cleum by the standard of evidence under applicable State law in effect on the day before January 1, 1999. (b) LIMITATION ON BYSTANDER LIABILITY FOR Y2K FAILURES.— (1) IN GENERAL.— With respect to any Y2K action for money damages in which— (A) the defendant is not the manufactiu'er, seller, or distributor of a product, or the provider of a service, that suffers or causes the Y2K failure at issue; (B) the plaintiff is not in substantial privity with the defendeuit; and (C) the defendant's actual or constructive awareness of an actugJ or potential Y2K failure is an element of the claim under applicable law, the defendant shall not be liable unless the pledntiff, in addition to establishing all other requisite elements of the claim, proves, by the standard of evidence under applicable State law in effect on the day before January 1, 1999, that the defendant actu£dly knew, or recklessly disreg£u*ded a known and substeuitial risk, that such failure would occur. (2) SUBSTANTIAL PRIVITY.—For purposes of paragraph (1)(B), a plaintiff and a defendant are in substantial privity when, in a Y2K action Eirising out of the performance of professional services, the plaintiff and the defendant either have contractual relations with one another or the plaintiff is a person who, prior to the defendant's performance of such services, was specifically identified to and acknowledged by the defendant as a person for whose special benefit the services were being performed. (3) CERTAIN CLAIMS EXCLUDED.—For purposes of paragraph (1)(C), clEums in which the defendant's actual or constructive awareness of an actual or potential Y2K failure is an element of the claim under applicable law do not include clsdms for negligence but do include claims such as fraud, constructive fraud, breach of fiduciary duty, negligent misrepresentation, and interference with contract or economic advantage. (c) CONTROL NOT DETERMINATIVE OF LLVBILITY. —The fact that a Y2K failure occurred in an entity, facility, system, product, or component that was sold, leased, rented, or otherwise within the control of the party against whom a claim is asserted in a Y2K action shall not constitute the sole basis for recovery of damages
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